Does the Trump Administration Have “Good Cause” to Skip Notice and Comment?
A new piece at the FedSoc Blog.
Last week, TechFreedom and CEI co-hosted a two-day forum in Washington, D.C., on the constitutional limits of FTC and FCC meddling in media and speech. The panels—now posted to YouTube here and here—brought together top experts on administrative law and the First Amendment. I was slated to moderate two of the sessions, but a family emergency kept me in California. Very sad. I made the best of it, though, by writing a piece on notice-and-comment rulemaking (nerd alert), which the FedSoc Blog kindly published with amazing speed. You can find it here—and, now, below.
If we were purists, federal agencies would scarcely make rules at all. The Founders did not design, and could not have imagined, a labyrinth of commissions—the FTC, FCC, SEC, EPA, and the rest—each churning out binding edicts for vast swaths of society. And it’s not just that there is so much regulation. It’s also that (although the Supreme Court takes pains not to admit it) modern agency rulemaking is, in substance, the executive branch wielding Congress’s legislative power.
For better or worse, however, the administrative state is not going anywhere. The Justices might soon revive the nondelegation doctrine—the idea that Congress must legislate with specificity—but they will never again, as they did at the beginning, limit agencies to merely “fill[ing] up the details.” And if the Court makes all agency heads removable at will by the president—as it seems poised to do—that only makes Congress’s abdication look worse. Its lawmaking power will effectively rest in the hands of one man.
Fortunately, the Administrative Procedure Act (APA) places a vital democratic check on agency rulemaking. It’s a workaround, but it functions, and it’s become a cornerstone of administrative law. Under the APA, agencies must go through notice and comment before issuing substantive rules.
Last month, President Trump issued an executive order directing agencies to repeal “unlawful, unnecessary, and onerous regulations.” That much is par for the course in a Republican administration. But the order goes further: it tells agencies to finalize repeals “without notice and comment, where doing so is consistent with the ‘good cause’ exception” in the APA. The order correctly points out that, under this exception, notice and comment may be skipped if it would be “impracticable, unnecessary, or contrary to the public interest.” But the order then makes a bold claim: “good cause” exists, it says, whenever an agency concludes that a regulation is “facially unlawful.”
Has the administration found a clever hack for skipping notice and comment? No. There is nothing novel here. Agency heads are usually eager to advance a new president’s agenda, and notice and comment tends to look, to them, like an unwelcome slog. As the academic literature notes, agencies have strong incentives to evade the process; and as the Government Accountability Office has documented, they often try. Naturally, agencies persuade themselves that bypassing notice and comment serves “the public interest.” And unsurprisingly, courts treat such assertions with suspicion. In the D.C. Circuit’s words, courts “have looked askance at agencies’ attempts to avoid the standard notice and comment procedures.” The Federal Reporter is full of decisions insisting that the good-cause exception be “narrowly construed and only reluctantly countenanced.” Under a looser standard, agencies would soon “carve the heart out” of the APA.
So a circumscribed reading is necessary as a matter of game theory. But it is also what Congress intended. A Senate report on the APA stressed that the statute includes no notice-and-comment “escape clause.” On the contrary, each of the grounds for invoking “good cause” is narrow. The Trump administration relies on two: lack of necessity and the public interest. But as Attorney General Tom Clark explained in his manual on the APA, “unnecessary” refers to “a minor rule or amendment,” while “public interest” means when a rule’s purpose “would be defeated by . . . advance notice.”
The Congressional Research Service recently surveyed good-cause exception cases. It discusses emergencies, situations where notice would be self-defeating, and statutes that impliedly waive the notice-and-comment requirement. But it says not a word about good cause to repeal, without process, a rule an agency now deems “facially unlawful.” That’s as it should be. Under the APA, rules made through notice and comment must be unmade the same way. An agency that finalizes a rule believes it to be lawful. It cannot later rescind that rule without notice and comment on the grounds that the rule is really unlawful, any more than it could do so on the grounds that the rule is a really bad idea. An agency cannot use the good-cause exception to evade notice and comment simply because it regrets what it did on the merits.
The executive order instructs agencies to reassess their regulations in light of ten recent Supreme Court rulings. Perhaps a handful of regulations could be discarded, following such a review, without notice and comment. One can imagine rules so clearly foreclosed by new decisions that repeal amounts to a ministerial act. Had it existed in 1954, for example, the Department of Education could have promptly repealed any rule that required or assumed segregation. But such obvious cases are rare—nowhere near common enough to support the sweeping regulatory rollback the administration seems to have in mind.
New precedents often raise as many questions as they answer. Take the first case on the executive order’s list: Loper Bright v. Raimondo (2024), which scrapped Chevron deference. Now judges must apply a law’s best reading, rather than any plausible reading an agency might offer. The administration seems to think that, with Loper Bright on the books, agencies must now repeal, without public input, any rule that does not reflect the one correct interpretation of a statute. But working out that interpretation is precisely what the notice-and-comment process is for. And in any event, Loper Bright said that it did “not call into question prior cases that relied on the Chevron framework.” If the Court exercised such restraint, by what authority may agencies bull ahead? Might the Court conclude that past agency reliance on Chevron, like past court reliance on Chevron, remains lawful? Repealing rules without notice and comment doesn’t resolve these uncertainties—it assumes them away. The APA does not grant agencies such conveniences.
It is strange to treat Loper Bright as an agency-empowering decision. “Whatever respect an Executive Branch interpretation” may deserve, it says, quoting a case from 1840, a judge is not “bound to adopt the construction given by the head of a department.” The APA, too, makes clear that “the reviewing court shall decide all relevant questions of law.” But if an agency’s understanding of the law receives no deference, an agency should not be declaring, on its own authority, which of its regulations are so unlawful as to open up the “good cause” shortcut. The proper course is to go through notice and comment, issue the repeal, then let the courts make the final call.
The kicker is that, with Loper Bright in place, the administration has no business seeking deference for its expansive take on the good-cause exception. The FCC once sought such deference before a D.C. Circuit panel that included then-Judge Janice Rogers Brown. She rejected its bid without ceremony. “An agency has no interpretive authority over the APA,” she wrote for the court. The FCC had no power to override the court’s settled view that “the good-cause inquiry is ‘meticulous and demanding.’” As if anticipating the present moment, Brown added: “Deference to an agency’s invocation of good cause—particularly when its reasoning is potentially capacious, as is the case here—would conflict with this court’s deliberate and careful treatment of the exception in the past.” Loper Bright only underscores her point.
The administration should bite the bullet and direct agencies to proceed with notice and comment. Yes, it’s slower. But the resulting deregulation will be more thoughtful, more legitimate, and more durable. The current approach probably won’t hold up in court. But the greater risk is that it might. A loose “good cause” standard is a recipe for mischief. A cheat for repealing rules today is a cheat for imposing them tomorrow.